For the principal aim of society is to protect individuals in
the enjoyment of those absolute rights, which were vested
in them by the immutable laws of nature; but which could
not be preserved in peace without that mutual assistance
and intercourse, which is gained by the institution of
friendly and social communities. Hence it follows, that the
first and primary end of human laws is to maintain and
regulate these absolute rights of individuals. Such rights as
are social and relative result from, and are posterior to, the
formation of states and societies: so that to maintain and
regulate these, is clearly a subsequent consideration. And
therefore the principal view of human laws is, or ought
always to be, to explain, protect, and enforce such rights
as are absolute, which in themselves are few and simple;
and, then, such rights as are relative, which arising from a
variety of connexions, will be far more numerous and
more complicated. These will take up a greater space in
any code of laws, and hence may appear to be more attended
to, though in reality they are not, than the rights
of the former kind. Let us therefore proceed to examine
how far all laws ought, and how far the laws of England
actually do, take notice of these absolute rights, and provide
for their lasting security.

The absolute rights of man, considered as a free agent,
endowed with discernment to know good from evil, and
with power of choosing those measures which appear to
him to be most desirable, are usually summed up in one
general appellation, and denominated the natural liberty
of mankind. This natural liberty consists properly in a
power of acting as one thinks fit, without any restraint or
control, unless by the law of nature: being a right inherent
in us by birth, and one of the gifts of God to man at his
creation, when he endued him with the faculty of free-will.
But every man, when he enters into society, gives up a part
of his natural liberty, as the price of so valuable a purchase;
and, in consideration of receiving the advantages of
mutual commerce, obliges himself to conform to those
laws, which the community has thought proper to establish.
And this species of legal obedience and conformity is
infinitely more desirable, than that wild and savage liberty
which is sacrificed to obtain it. For no man, that considers
a moment, would wish to retain the absolute and uncontroled
power of doing whatever he pleases; the consequence
of which is, that every other man would also have
the same power; and then there would be no security to
individuals in any of the enjoyments of life. Political therefore,
or civil, liberty, which is that of a member of society,
is no other than natural liberty so far restrained by human
laws (and no farther) as is necessary and expedient for the
general advantage of the publick. Hence we may collect
that the law, which restrains a man from doing mischief to
his fellow citizens, though it diminishes the natural, increases
the civil liberty of mankind: but every wanton and
causeless restraint of the will of the subject, whether practiced
by a monarch, a nobility, or a popular assembly, is a
degree of tyranny. Nay, that even laws themselves,
whether made with or without our consent, if they regulate
and constrain our conduct in matters of mere indifference,
without any good end in view, are laws destructive
of liberty: whereas if any public advantage can arise from
observing such precepts, the control of our private inclinations,
in one or two particular points, will conduce to
preserve our general freedom in others of more importance;
by supporting that state, of society, which alone can [Volume 5, Page 389]
secure our independence. Thus the statute of king Edward
IV, which forbad the fine gentlemen of those times
(under the degree of a lord) to wear pikes upon their
shoes or boots of more than two inches in length, was a
law that savoured of oppression; because, however ridiculous
the fashion then in use might appear, the restraining
it by pecuniary penalties could serve no purpose of common
utility. But the statute of king Charles II, which prescribes
a thing seemingly as indifferent; viz. a dress for the
dead, who are all ordered to be buried in woollen; is a law
consistent with public liberty, for it encourages the staple
trade, on which in great measure depends the universal
good of the nation. So that laws, when prudently framed,
are by no means subversive but rather introductive of liberty;
for (as Mr Locke has well observed) where there is
no law, there is no freedom. But then, on the other hand,
that constitution or frame of government, that system of
laws, is alone calculated to maintain civil liberty, which
leaves the subject entire master of his own conduct, except
in those points wherein the public good requires some direction
or restraint.

The idea and practice of this political or civil liberty
flourish in their highest vigour in these kingdoms, where
it falls little short of perfection, and can only be lost or
destroyed by the folly or demerits of it's owner: the legislature,
and of course the laws of England, being peculiarly
adapted to the preservation of this inestimable blessing
even in the meanest subject. Very different from the modern
constitutions of other states, on the continent of Europe,
and from the genius of the imperial law; which in
general are calculated to vest an arbitrary and despotic
power of controlling the actions of the subject in the
prince, or in a few grandees. And this spirit of liberty is so
deeply implanted in our constitution, and rooted even in
our very soil, that a slave or a negro, the moment he lands
in England, falls under the protection of the laws, and
with regard to all natural rights becomes eo instanti a
freeman.

The absolute rights of every Englishman (which, taken
in a political and extensive sense, are usually called their
liberties) as they are founded on nature and reason, so
they are coeval with our form of government; though subject
at times to fluctuate and change: their establishment
(excellent as it is) being still human. At some times we have
seen them depressed by overbearing and tyrannical
princes; at others so luxuriant as even to tend to anarchy,
a worse state than tyranny itself, as any government is better
than none at all. But the vigour of our free constitution
has always delivered the nation from these embarassments,
and, as soon as the convulsions consequent on the struggle
have been over, the ballance of our rights and liberties has
settled to it's proper level; and their fundamental articles
have been from time to time asserted in parliament, as often
as they were thought to be in danger.

First, by the great charter of liberties, which was obtained,
sword in hand, from king John; and afterwards,
with some alterations, confirmed in parliament by king
Henry the third, his son. Which charter contained very
few new grants; but, as sir Edward Coke observes, was for
the most part declaratory of the principal grounds of the
fundamental laws of England. Afterwards by the statute
called confirmatio cartarum, whereby the great charter is directed
to be allowed as the common law; all judgments
contrary to it are declared void; copies of it are ordered to
be sent to all cathedral churches, and read twice a year to
the people; and sentence of excommunication is directed
to be as constantly denounced against all those that by
word, deed, or counsel act contrary thereto, or in any degree
infringe it. Next by a multitude of subsequent corroborating
statutes, (sir Edward Coke, I think, reckons thirty
two,) from the first Edward to Henry the fourth. Then,
after a long interval, by the petition of right; which was a
parliamentary declaration of the liberties of the people, assented
to by king Charles the first in the beginning of his
reign. Which was closely followed by the still more ample
concessions made by that unhappy prince to his parliament,
before the fatal rupture between them; and
by the many salutary laws, particularly the habeas corpus
act, passed under Charles the second. To these succeeded
the bill of rights, or declaration delivered by
the lords and commons to the prince and princess of Orange
13 February 1688; and afterwards enacted in parliament,
when they became king and queen: which declaration concludes
in these remarkable words; "and they do claim, demand,
and insist upon all and singular the premises, as
their undoubted rights and liberties." And the act of parliament
itself recognizes "all and singular the rights and
liberties asserted and claimed in the said declaration to be
the true, antient, and indubitable rights of the people of
this kingdom." Lastly, these liberties were again asserted at
the commencement of the present century, in the act of
settlement, whereby the crown is limited to his present majesty's
illustrious house, and some new provisions were
added at the same fortunate aera for better securing our
religion, laws, and liberties; which the statute declares to
be "the birthright of the people of England;" according to
the antient doctrine of the common law.

Thus much for the declaration of our rights and liberties.
The rights themselves thus defined by these several statutes,
consist in a number of private immunities; which will
appear, from what has been premised, to be indeed no
other, than either that residuum of natural liberty, which is
not required by the laws of society to be sacrificed to public
convenience; or else those civil privileges, which society
hath engaged to provide, in lieu of the natural liberties so
given up by individuals. These therefore were formerly,
either by inheritance or purchase, the rights of all mankind;
but, in most other countries of the world being now
more or less debased and destroyed, they at present may
be said to remain, in a peculiar and emphatical manner,
the rights of the people of England. And these may be
reduced to three principal or primary articles; the right of
personal security, the right of personal liberty; and the
right of private property: because as there is no other
known method of compulsion, or of abridging man's natural
free will, but by an infringement or diminution of one
or other of these important rights, the preservation of
these, inviolate, may justly be said to include the preservation
of our civil immunities in their largest and most extensive
sense.

[Volume 5, Page 390]

I. The right of personal security consists in a person's
legal and uninterrupted enjoyment of his life, his limbs,
his body, his health, and his reputation.

1. Life is the immediate gift of God, a right inherent by
nature in every individual; and it begins in contemplation
of law as soon as an infant is able to stir in the mother's
womb. For if a woman is quick with child, and by a potion,
or otherwise, killeth it in her womb; or if any one beat her,
whereby the child dieth in her body, and she is delivered
of a dead child; this, though not murder, was by the antient
law homicide or manslaughter. But at present it is not
looked upon in quite so atrocious a light, though it remains
a very heinous misdemesnor.

An infant in ventre sa mere, or in the mother's womb, is
supposed in law to be born for many purposes. It is capable
of having a legacy, or a surrender of a copyhold estate
made to it. It may have a guardian assigned to it; and it is
enabled to have an estate limited to it's use, and to take
afterwards by such limitation, as if it were then actually
born. And in this point the civil law agrees with ours.

2. A man's limbs, (by which for the present we only understand
those members which may be useful to him in
fight, and the loss of which only amounts to mayhem by
the common law) are also the gift of the wise creator; to
enable man to protect himself from external injuries in a
state of nature. To these therefore he has a natural inherent
right; and they cannot be wantonly destroyed or disabled
without a manifest breach of civil liberty.

Both the life and limbs of a man are of such high value,
in the estimation of the law of England, that it pardons
even homicide if committed se defendendo, or in order to
preserve them. For whatever is done by a man, to save
either life or member, is looked upon as done upon the
highest necessity and compulsion. Therefore if a man
through fear of death or mayhem is prevailed upon to execute
a deed, or do any other legal act; these, though accompanied
with all other the requisite solemnities, are totally
void in law, if forced upon him by a well-grounded
apprehension of losing his life, or even his limbs, in case
of his non-compliance. And the same is also a sufficient
excuse for the commission of many misdemesnors, as will
appear in the fourth book. The constraint a man is under
in these circumstances is called in law duress, from the
Latin durities, of which there are two sorts; duress of imprisonment,
where a man actually loses his liberty, of
which we shall presently speak; and duress per minas,
where the hardship is only threatened and impending,
which is that we are now discoursing of. Duress per minas
is either for fear of loss of life, or else for fear of mayhem,
or loss of limb. And this fear must be upon sufficient reason;
"non," as Bracton expresses it, "suspicio cujuslibet vani
et meticulosi hominis, sed talis qui possit cadere in virum constantem;
talis enim debet esse metus, qui in se contineat vitae periculum,
aut corporis cruciatum." A fear of battery, or being
beaten, though never so well grounded, is no duress; neither
is the fear of having one's house burnt, or one's goods
taken away and destroyed; because in these cases, should
the threat be performed, a man may have satisfaction by
recovering equivalent damages: but no suitable atonement
can be made for the loss of life, or limb. And the indulgence
shewn to a man under this, the principal, sort of
duress, the fear of losing his life or limbs, agrees also with
that maxim of the civil law; ignoscitur ei qui sanguinem suum
qualiter qualiter redemptum voluit.

The law not only regards life and member, and protects
every man in the enjoyment of them, but also furnishes
him with every thing necessary for their support. For
there is no man so indigent or wretched, but he may demand
a supply sufficient for all the necessities of life, from
the more opulent part of the community, by means of the
several statutes enacted for the relief of the poor, of which
in their proper places. A humane provision; yet, though
dictated by the principles of society, discountenanced by
the Roman laws. For the edicts of the emperor Constantine,
commanding the public to maintain the children of
those who were unable to provide for them, in order to
prevent the murder and exposure of infants, an institution
founded on the same principle as our foundling hospitals,
though comprized in the Theodosian code, were rejected
in Justinian's collection.

These rights, of life and member, can only be determined
by the death of the person; which is either a civil
or natural death. The civil death commences if any man
be banished the realm by the process of the common law,
or enters into religion; that is, goes into a monastery, and
becomes there a monk professed: in which cases he is absolutely
dead in law, and his next heir shall have his estate.
For, such banished man is entirely cut off from society;
and such a monk, upon his profession, renounces solemnly
all secular concerns: and besides, as the popish
clergy claimed an exemption from the duties of civil life,
and the commands of the temporal magistrate, the genius
of the English law would not suffer those persons to enjoy
the benefits of society, who secluded themselves from it,
and refused to submit to it's regulations. A monk is therefore
accounted civiliter mortuus, and when he enters into
religion may, like other dying men, make his testament
and executors; or, if he makes none, the ordinary may
grant administration to his next of kin, as if he were actually
dead intestate. And such executors and administrators
shall have the same power, and may bring the same
actions for debts due to the religious, and are liable to the
same actions for those due from him, as if he were naturally
deceased. Nay, so far has this principle been carried,
that when one was bound in a bond to an abbot and his
successors, and afterwards made his executors and professed
himself a monk of the same abbey, and in process
of time was himself made abbot thereof; here the law gave
him, in the capacity of abbot, an action of debt against his
own executors to recover the money due. In short, a monk
or religious is so effectually dead in law, that a lease made
even to a third person, during the life (generally) of one
who afterwards becomes a monk, determines by such his
entry into religion: for which reason leases, and other conveyances,
for life, are usually made to have and to hold
for the term of one's natural life.

This natural life being, as was before observed, the immediate
donation of the great creator, cannot legally be
disposed of or destroyed by any individual, neither by the
person himself nor by any other of his fellow creatures, [Volume 5, Page 391]
merely upon their own authority. Yet nevertheless it may,
by the divine permission, be frequently forfeited for the
breach of those laws of society, which are enforced by the
sanction of capital punishments; of the nature, restrictions,
expedience, and legality of which, we may hereafter more
conveniently enquire in the concluding book of these commentaries.
At present, I shall only observe, that whenever
the constitution of a state vests in any man, or body of men,
a power of destroying at pleasure, without the direction of
laws, the lives or members of the subject, such constitution
is in the highest degree tyrannical: and that whenever any
laws direct such destruction for light and trivial causes,
such laws are likewise tyrannical, though in an inferior degree;
because here the subject is aware of the danger he is
exposed to, and may by prudent caution provide against
it. The statute law of England does therefore very seldom,
and the common law does never, inflict any punishment
extending to life or limb, unless upon the highest necessity:
and the constitution is an utter stranger to any arbitrary
power of killing or maiming the subject without the
express warrant of law. "Nullus liber homo, says the great
charter, aliquo modo destruatur, nisi per legale judicium parium
suorum aut per legem terrae." Which words, "aliquo modo destruatur,"
according to sir Edward Coke, include a prohibition
not only of killing, and maiming, but also of torturing
(to which our laws are strangers) and of every oppression
by colour of an illegal authority. And it is enacted by the
statute 5 Edw. III. c. 9. that no man shall be forejudged
of life or limb, contrary to the great charter and the law
of the land: and again, by statute 28 Ed. III. c. 3. that no
man shall be put to death, without being brought to answer
by due process of law.

3. Besides those limbs and members that may be necessary
to man, in order to defend himself or annoy his enemy,
the rest of his person or body is also entitled by the
same natural right to security from the corporal insults of
menaces, assaults, beating, and wounding; though such insults
amount not to destruction of life or member.

4. The preservation of a man's health from such practices
as may prejudice or annoy it, and

5. The security of his reputation or good name from
the arts of detraction and slander, are rights to which
every man is intitled, by reason and natural justice; since
without these it is impossible to have the perfect enjoyment
of any other advantage or right. But these three last
articles (being of much less importance than those which
have gone before, and those which are yet to come) it will
suffice to have barely mentioned among the rights of persons;
referring the more minute discussion of their several
branches, to those parts of our commentaries which treat
of the infringement of these rights, under the head of personal
wrongs.

II. Next to personal security, the law of England regards,
asserts, and preserves the personal liberty of individuals.
This personal liberty consists in the power of locomotion,
of changing situation, or removing one's person
to whatsoever place one's own inclination may direct; without
imprisonment or restraint, unless by due course of
law. Concerning which we may make the same observations
as upon the preceding article; that it is a right strictly
natural; that the laws of England have never abridged it
without sufficient cause; and, that in this kingdom it cannot
ever be abridged at the mere discretion of the magistrate,
without the explicit permission of the laws. Here
again the language of the great charter is, that no freeman
shall be taken or imprisoned, but by the lawful judgment
of his equals, or by the law of the land. And many subsequent
old statutes expressly direct, that no man shall be
taken or imprisoned by suggestion or petition to the king,
or his council, unless it be by legal indictment, or the process
of the common law. By the petition of right, 3 Car. I,
it is enacted, that no freeman shall be imprisoned or detained
without cause shewn, to which he may make answer
according to law. By 16 Car. I. c. 10. if any person be
restrained of his liberty by order or decree of any illegal
court, or by command of the king's majesty in person, or
by warrant of the council board, or of any of the privy
council; he shall, upon demand of his counsel, have a writ
of habeas corpus, to bring his body before the court of
king's bench or common pleas; who shall determine
whether the cause of his commitment be just, and thereupon
do as to justice shall appertain. And by 31 Car. II.
c. 2. commonly called the habeas corpus act, the methods of
obtaining this writ are so plainly pointed out and enforced,
that, so long as this statute remains unimpeached, no subject
of England can be long detained in prison, except in
those cases in which the law requires and justifies such detainer.
And, lest this act should be evaded by demanding
unreasonable bail, or sureties for the prisoner's appearance,
it is declared by 1 W. & M. st. 2. c. 2. that excessive
bail ought not to be required.

Of great importance to the public is the preservation of
this personal liberty: for if once it were left in the power
of any, the highest, magistrate to imprison arbitrarily
whomever he or his officers thought proper, (as in France
it is daily practiced by the crown) there would soon be an
end of all other rights and immunities. Some have
thought, that unjust attacks, even upon life, or property,
at the arbitrary will of the magistrate, are less dangerous
to the commonwealth, than such as are made upon the
personal liberty of the subject. To bereave a man of life,
or by violence to confiscate his estate, without accusation
or trial, would be so gross and notorious an act of despotism,
as must at once convey the alarm of tyranny
throughout the whole kingdom. But confinement of the
person, by secretly hurrying him to gaol, where his sufferings
are unknown or forgotten; is a less public, a less striking,
and therefore a more dangerous engine of arbitrary
government. And yet sometimes, when the state is in real
danger, even this may be a necessary measure. But the
happiness of our constitution is, that it is not left to the
executive power to determine when the danger of the state
is so great, as to render this measure expedient. For the
parliament only, or legislative power, whenever it sees
proper, can authorize the crown, by suspending the habeas
corpus act for a short and limited time, to imprison suspected
persons without giving any reason for so doing. As
the senate of Rome was wont to have recourse to a dictator,
a magistrate of absolute authority, when they judged
the republic in any imminent danger. The decree of the [Volume 5, Page 392]
senate, which usually preceded the nomination of this
magistrate, "dent operam consules, nequid respublica detrimenti
capiat," was called the senatus consultum ultimae necessitatis.
In like manner this experiment ought only to be tried in
cases of extreme emergency; and in these the nation parts
with it's liberty for a while, in order to preserve it for ever.

The confinement of the person, in any wise, is an imprisonment.
So that the keeping a man against his will in
a private house, putting him in the stocks, arresting or forcibly
detaining him in the street, is an imprisonment. And
the law so much discourages unlawful confinement, that if
a man is under duress of imprisonment, which we before explained
to mean a compulsion by an illegal restraint of liberty,
until he seals a bond or the like; he may alledge this
duress, and avoid the extorted bond. But if a man be lawfully
imprisoned, and either to procure his discharge, or
on any other fair account, seals a bond or a deed, this is
not by duress of imprisonment, and he is not at liberty to
avoid it. To make imprisonment lawful, it must either be,
by process from the courts of judicature, or by warrant
from some legal officer, having authority to commit to
prison; which warrant must be in writing, under the hand
and seal of the magistrate, and express the causes of the
commitment, in order to be examined into (if necessary)
upon a habeas corpus. If there be no cause expressed, the
gaoler is not bound to detain the prisoner. For the law
judges in this respect, saith sir Edward Coke, like Festus
the Roman governor; that it is unreasonable to send a
prisoner, and not to signify withal the crimes alleged
against him.

A natural and regular consequence of this personal liberty,
is, that every Englishman may claim a right to abide
in his own country so long as he pleases; and not to be
driven from it unless by the sentence of the law. The king
indeed, by his royal prerogative, may issue out his writ ne
exeat regnum, and prohibit any of his subjects from going
into foreign parts without licence. This may be necessary
for the public service, and safeguard of the commonwealth.
But no power on earth, except the authority of
parliament, can send any subject of England out of the land
against his will; no not even a criminal. For exile, or transportation,
is a punishment unknown to the common law;
and, wherever it is now inflicted, it is either by the choice
of the criminal himself, to escape a capital punishment, or
else by the express direction of some modern act of parliament.
To this purpose the great charter declares that no
freeman shall be banished, unless by the judgment of his
peers, or by the law of the land. And by the habeas corpus
act, 31 Car. II, c. 2. (that second magna carta, and stable
bulwark of our liberties) it is enacted, that no subject of
this realm, who is an inhabitant of England, Wales, or Berwick,
shall be sent prisoner into Scotland, Ireland, Jersey,
Guernsey, or places beyond the seas; (where they cannot
have the benefit and protection of the common law) but
that all such imprisonments shall be illegal; that the person,
who shall dare to commit another contrary to this law,
shall be disabled from bearing any office, shall incur the
penalty of a praemunire, and be incapable of receiving the
king's pardon: and the party suffering shall also have his
private action against the person committing, and all his
aiders, advisers and abettors, and shall recover treble costs;
besides his damages, which no jury shall assess at less than
five hundred pounds.

The law is in this respect so benignly and liberally construed
for the benefit of the subject, that, though within
the realm the king may command the attendance and service
of all his liegemen, yet he cannot send any man out of
the realm, even upon the public service; he cannot even
constitute a man lord deputy or lieutenant of Ireland
against his will, nor make him a foreign embassador. For
this might in reality be no more than an honorable exile.

III. The third absolute right, inherent in every Englishman,
is that of property: which consists of the free use,
enjoyment, and disposal of all his acquisitions, without any
control or diminution, save only by the laws of the land.
The original of private property is probably founded in
nature, as will be more fully explained in the second book
of the ensuing commentaries: but certainly the modifications
under which we at present find it, the method of
conserving it in the present owner, and of translating it
from man to man, are entirely derived from society; and
are some of those civil advantages, in exchange for which
every individual has resigned a part of his natural liberty.
The laws of England are therefore, in point of honor and
justice, extremely watchful in ascertaining and protecting
this right. Upon this principle the great charter has declared
that no freeman shall be disseised, or divested, of
his freehold, or of his liberties, or free customs, but by the
judgment of his peers, or by the law of the land. And by a
variety of antient statutes it is enacted, that no man's lands
or goods shall be seised into the king's hands, against the
great charter, and the law of the land; and that no man
shall be disinherited, nor put out of his franchises or freehold,
unless he be duly brought to answer, and be forejudged
by course of law; and if any thing be done to the
contrary, it shall be redressed, and holden for none.

So great moreover is the regard of the law for private
property, that it will not authorize the least violation of it;
no, not even for the general good of the whole community.
If a new road, for instance, were to be made through
the grounds of a private person, it might perhaps be extensively
beneficial to the public; but the law permits no
man, or set of men, to do this without consent of the
owner of the land. In vain may it be urged, that the good
of the individual ought to yield to that of the community;
for it would be dangerous to allow any private man, or
even any public tribunal, to be the judge of this common
good, and to decide whether it be expedient or no. Besides,
the public good is in nothing more essentially interested,
than in the protection of every individual's private
rights, as modelled by the municipal law. In this, and similar
cases the legislature alone can, and indeed frequently
does, interpose, and compel the individual to acquiesce.
But how does it interpose and compel? Not by absolutely
stripping the subject of his property in an arbitrary manner;
but by giving him a full indemnification and equivalent
for the injury thereby sustained. The public is now
considered as an individual, treating with an individual for
an exchange. All that the legislature does is to oblige the
owner to alienate his possessions for a reasonable price; [Volume 5, Page 393]
and even this is an exertion of power, which the legislature
indulges with caution, and which nothing but the legislature
can perform.

Nor is this the only instance in which the law of the land
has postponed even public necessity to the sacred and inviolable
rights of private property. For no subject of England
can be constrained to pay any aids or taxes, even for
the defence of the realm or the support of government,
but such as are imposed by his own consent, or that of his
representatives in parliament. By the statute 25 Edw. I. c.
5 and 6. it is provided, that the king shall not take any aids
or tasks, but by the common assent of the realm. And what
that common assent is, is more fully explained by 34 Edw.
I. st. 4. cap. 1. which enacts, that no talliage or aid shall be
taken without assent of the arch-bishops, bishops, earls,
barons, knights, burgesses, and other freemen of the land:
and again by 14 Edw. III. st. 2. c. 1. the prelates, earls,
barons, and commons, citizens, burgesses, and merchants
shall not be charged to make any aid, if it be not by the
common assent of the great men and commons in parliament.
And as this fundamental law had been shamefully
evaded under many succeeding princes, by compulsive
loans, and benevolences extorted without a real and voluntary
consent, it was made an article in the petition of
right 3 Car. I, that no man shall be compelled to yield any
gift, loan, or benevolence, tax, or such like charge, without
common consent by act of parliament. And, lastly, by the
statute 1 W.&M. st. 2. c. 2. it is declared, that levying
money for or to the use of the crown, by pretence of prerogative,
without grant of parliament; or for longer time,
or in other manner, than the same is or shall be granted,
is illegal.

In the three preceding articles we have taken a short
view of the principal absolute rights which appertain to
every Englishman. But in vain would these rights be declared,
ascertained, and protected by the dead letter of the
laws, if the constitution had provided no other method to
secure their actual enjoyment. It has therefore established
certain other auxiliary subordinate rights of the subject,
which serve principally as barriers to protect and maintain
inviolate the three great and primary rights, of personal
security, personal liberty, and private property. These are,

1. The constitution, powers, and privileges of parliament,
of which I shall treat at large in the ensuing chapter.

2. The limitation of the king's prerogative, by bounds
so certain and notorious, that it is impossible he should
exceed them without the consent of the people. Of this
also I shall treat in it's proper place. The former of these
keeps the legislative power in due health and vigour, so as
to make it improbable that laws should be enacted destructive
of general liberty: the latter is a guard upon the executive
power, by restraining it from acting either beyond
or in contradiction to the laws, that are framed and established
by the other.

3. A third subordinate right of every Englishman is that
of applying to the courts of justice for redress of injuries.
Since the law is in England the supreme arbiter of every
man's life, liberty, and property, courts of justice must at
all times be open to the subject, and the law be duly administred
therein. The emphatical words of magna carta,
spoken in the person of the king, who in judgment of law
(says sir Edward Coke) is ever present and repeating them
in all his courts, are these; "nulli vendemus, nulli negabimus,
aut differemus rectum vel justitiam: and therefore every subject,"
continues the same learned author, "for injury done
to him in bonis, in terris, vel persona, by any other subject,
be he ecclesiastical or temporal without any exception, may
take his remedy by the course of the law, and have justice
and right for the injury done to him, freely without sale,
fully without any denial, and speedily without delay." It
were endless to enumerate all the affirmative acts of parliament
wherein justice is directed to be done according to
the law of the land: and what that law is, every subject
knows; or may know if he pleases: for it depends not upon
the arbitrary will of any judge; but is permanent, fixed,
and unchangeable, unless by authority of parliament. I
shall however just mention a few negative statutes, whereby
abuses, perversions, or delays of justice, especially by the
prerogative, are restrained. It is ordained by magna carta,
that no freeman shall be outlawed, that is, put out of the
protection and benefit of the laws, but according to the law
of the land. By 2 Edw. III. c. 8. and 11 Ric. II. c. 10. it is
enacted, that no commands or letters shall be sent under
the great seal, or the little seal, the signet, or privy seal, in
disturbance of the law; or to disturb or delay common
right: and, though such commandments should come, the
judges shall not cease to do right. And by 1 W.&M. st. 2.
c. 2. it is declared, that the pretended power of suspending,
or dispensing with laws, or the execution of laws, by
regal authority without consent of parliament, is illegal.

Not only the substantial part, or judicial decisions, of the
law, but also the formal part, or method of proceeding,
cannot be altered but by parliament: for if once those outworks
were demolished, there would be no inlet to all
manner of innovation in the body of the law itself. The
king, it is true, may erect new courts of justice; but then
they must proceed according to the old established forms
of the common law. For which reason it is declared in the
statute 16 Car. I. c. 10. upon the dissolution of the court
of starchamber, that neither his majesty, nor his privy
council, have any jurisdiction, power, or authority by English
bill, petition, articles, libel (which were the course of
proceeding in the starchamber, borrowed from the civil
law) or by any other arbitrary way whatsoever, to examine,
or draw into question, determine or dispose of the lands
or goods of any subjects of this kingdom; but that the
same ought to be tried and determined in the ordinary
courts of justice, and by course of law.

4. If there should happen any uncommon injury, or infringement
of the rights beforementioned, which the ordinary
course of law is too defective to reach, there still
remains a fourth subordinate right appertaining to every
individual, namely, the right of petitioning the king, or
either house of parliament, for the redress of grievances.
In Russia we are told that the czar Peter established a law,
that no subject might petition the throne, till he had first
petitioned two different ministers of state. In case he obtained
justice from neither, he might then present a third
petition to the prince; but upon pain of death, if found to
be in the wrong. The consequence of which was, that no [Volume 5, Page 394]
one dared to offer such third petition; and grievances seldom
falling under the notice of the sovereign, he had little
opportunity to redress them. The restrictions, for some
there are, which are laid upon petitioning in England, are
of a nature extremely different; and while they promote
the spirit of peace, they are no check upon that of liberty.
Care only must be taken, lest, under the pretence of petitioning,
the subject be guilty of any riot or tumult; as happened
in the opening of the memorable parliament in
1640: and, to prevent this, it is provided by the statute 13
Car. II. st. 1. c. 5. that no petition to the king, or either
house of parliament, for any alterations in church or state,
shall be signed by above twenty persons, unless the matter
thereof be approved by three justices of the peace or the
major part of the grand jury, in the country; and in London
by the lord mayor, aldermen, and common council;
nor shall any petition be presented by more than two persons
at a time. But under these regulations, it is declared
by the statute 1 W. & M. st. 2. c. 2. that the subject hath a
right to petition; and that all commitments and prosecutions
for such petitioning are illegal.

5. The fifth and last auxiliary right of the subject, that I
shall at present mention, is that of having arms for their
defence, suitable to their condition and degree, and such
as are allowed by law. Which is also declared by the same
statute 1 W. & M. st. 2. c. 2. and is indeed a public allowance,
under due restrictions, of the natural right of resistance
and self-preservation, when the sanctions of society
and laws are found insufficient to restrain the violence of
oppression.

In these several articles consist the rights, or, as they are
frequently termed, the liberties of Englishmen: liberties
more generally talked of, than thoroughly understood;
and yet highly necessary to be perfectly known and considered
by every man of rank or property, lest his ignorance
of the points whereon it is founded should hurry him into
faction and licentiousness on the one hand, or a pusillanimous
indifference and criminal submission on the other.
And we have seen that these rights consist, primarily, in
the free enjoyment of personal security, of personal liberty,
and of private property. So long as these remain inviolate,
the subject is perfectly free; for every species of
compulsive tyranny and oppression must act in opposition
to one or other of these rights, having no other object
upon which it can possibly be employed. To preserve these
from violation, it is necessary that the constitution of parliaments
be supported in it's full vigor; and limits certainly
known, be set to the royal prerogative. And, lastly, to vindicate
these rights, when actually violated or attacked, the
subjects of England are entitled, in the first place, to the
regular administration and free course of justice in the
courts of law; next to the right of petitioning the king and
parliament for redress of grievances; and lastly to the right
of having and using arms for self-preservation and defence.
And all these rights and liberties it is our birthright
to enjoy entire; unless where the laws of our country have
laid them under necessary restraints. Restraints in themselves
so gentle and moderate, as will appear upon farther
enquiry, that no man of sense or probity would wish to see
them slackened. For all of us have it in our choice to do
every thing that a good man would desire to do; and are
restrained from nothing, but what would be pernicious either
to ourselves or our fellow citizens. So that this review
of our situation may fully justify the observation of a
learned French author, who indeed generally both
thought and wrote in the spirit of genuine freedom; and
who hath not scrupled to profess, even in the very bosom
of his native country, that the English is the only nation in
the world, where political or civil liberty is the direct end
of it's constitution. Recommending therefore to the student
in our laws a farther and more accurate search into
this extensive and important title, I shall close my remarks
upon it with the expiring wish of the famous father Paul
to his country, "Esto perpetua!"